Merpel wrote back in March on the proposal by the President of the European Patent Office for plans to reform the administration of the Boards of Appeal (proposals here and here; Merpel's comments here). Readers may recall that there is currently running a consultation on these proposals, and that both AMBA (the Association of Members of the Boards of Appeal) and the Presidium of the Boards of Appeal have commented on them already.
5. Two aspects of the Proposal cause most concern to EPLAW.
6. One is that the EPO almost equates the (desired) perceived autonomy of the BoA with their (undesired) perceived inefficiency; in fact most of the Questions deal with this perceived inefficiency. We believe that these subjects (autonomy/independence and efficiency) require separate handling. The independence of the BoA is a much more fundamental issue than its (in)efficiency. Moreover, we don’t think that the connection suggested by the EPO - that excellent performance (efficiency) would generate independence (autonomy) - has any basis in law. Efficiency is a matter of perceived fact, whereas autonomy is a matter of constitutional law.
7. The second point is that the EPO stresses that any improvements should be achieved within the legal framework of the current EPC. The current EPC envisages that both the AC and the President of the EPO have certain powers vis-à-vis the BoA. The Proposal in essence suggests that (only) the President’s powers be delegated to a newly to be created President of the BoA, rather than to revise the relevant EPC-based AC and Presidential powers. The CCBE in their letter to Mr. Kongstad have raised the question whether such delegation would withstand the scrutiny of constitutional lawyers: Does it achieve the desired independence of the BoA (to be compared with the judicial branch of a state), or could the delegation be withdrawn by the President of the EPO?
it is important that the delegation of powers by the President of the EPO be both permanent and irrevocable. It is not clear whether as a matter of constitutional law that can be achieved; if not amendment of the EPC may be required.
The CCBE questions what kind of judges should be eligible to serve on BOAC - Merpel in turn wonders whether direct administrative supervision (as opposed to more distant supervisory oversight) of the Boards by a committee containing members of the Administrative Council (who are effectively the legislature of the EPO) is appropriate in any case.
If any of these comments inspire you to submit ones of your own, Merpel reminds readers that the consultation will run until 30 June 2015.
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